Order of Closing Argument

As a trial lawyer who has been conducting jury trials for 35 years, the last 20 years strictly as a defense attorney, I have a hard time accepting long-standing procedural protocols in certain state courts, including Massachusetts, whereby the defendant is the first to give Closing Argument. Yes, I understand the order that arguments are given is premised on the prosecution having the burden of proof and the associated Common Law belief that, as such, it should have the last word (and thus, the last argument). However, that this is the way it has been done for years, if not centuries, does not mean it should always be so; nor does it mean it’s right and/or fair to continue to do it this way. From my perspective and experience, fundamental fairness ought to afford the accused one final opportunity to directly rebut the prosecution’s case, as summarized to the jury by opposing counsel. To make him or her do so prior to hearing the government’s summation does not allow this to happen. The net effect of the status quo is to not only require defense counsel to provide the jury with defendant’s own view of the evidence but to simultaneously anticipate what the prosecution is likely to argue before they have done so. The necessary multi-tasking this requires often undermines the substance of defense counsel’s own summation, particularly in trials where judges impose strict time limits on Opening and Closing statements and can inject a level of disjointedness that directly disrupts the polemic flow. It also allows the prosecution to adjust/mend defense-referenced flaws in their predicted argument while they listen, giving them the unfair advantage of having their newly revised characterization of the evidence go unchallenged. Several states, including California where I have represented certain clients, as well as federal courts everywhere, have recognized the inherent unfairness in conducting trials in this manner and have altered courtroom procedure accordingly, in a way that recognizes both the government’s solemn burden and the defendant’s fundamental right to a fair and even playing field. In such venues, the prosecution closes first, the defendant follows, and the prosecution is then allowed a time-enforced brief rebuttal solely limited to the substance of the argument just given, which still permits them the proverbial “last word”. It is my hope that the Defense Bar here in Massachusetts, and similar organizations in those other states where procedure remains likewise outdated, consider adopting this much-needed reform.